2020 (5) TMI 542 - HC - Customs

Waiver of Demurrage Charges levied by ICDs/CFSs/Port/Terminal Operators during lockdown - Permission to traders/members of petitioner/Foundation to lift their material from their respective ports without payment of penal charges - lockdown and pandemic COVID situation - case of petitioner is that petitioner/Foundation is not seeking complete waiver of charges levied by CFS on importers/ traders for handling and clearance of cargo, but is praying for waving off of ground rent penal charges, demurrage, Container Detention Charges etc., especially when they themselves have been exempted from paying Port ground rent charges during the lock down. Whether the guidelines/letters which are only advisory in nature and contain no directions under any statute can bind CFS and direct them not to charge ground rent etc.? HELD THAT - The advisory issued by CFS Association shows that it is also alive to the situation and taking a sympathetic view and giving considerable discount in ground rent/ penal charges. Letters issued by the concerned Ministries - HELD THAT - On careful examination of all the facts and submissions made by the Ld. Counsels for the parties, this Court is of the opinion that petitioner has failed to make out a prima facie case for grant of injunction. The circulars/guidelines and advisories issued by respondent no.1 and 2 are not binding upon respondent no. 3 to 6. Some of the advisories only contemplate that authorities concerned should adopt sympathetic and humanitarian approach and has advised them not to charge ground rent or penal charges. In these circumstances, there is no material on record which prima facie suggests that any right of the petitioner has been violated by the respondents. This Court is further of the opinion that since respondent no.3 to 6 are not bound by various guidelines/ letters/ advisories issued by respondent no.1 2, the balance of convenience also does not lie in favour of the petitioner. There are no grounds for grant of injunction/restrain order in favour of the petitioner and against the respondents are made out at this stage - The application filed by petitioner under Section 151 CPC for injunction is, therefore, dismissed.

Summary

Issues Involved:
1. Territorial jurisdiction of the court.
2. Applicability of advisories and guidelines issued by the Ministry of Shipping and Director General of Shipping.
3. Private contractual arrangements between Container Freight Stations (CFS) and their customers.
4. Relief sought by the petitioner regarding waiver of penal charges, demurrage, and other fees during the COVID-19 lockdown.

Detailed Analysis:

1. Territorial Jurisdiction of the Court:
The respondent argued that the court lacked territorial jurisdiction to entertain the petition as the subject containers/materials were lying at ports outside the court's jurisdiction. The court noted that the issue of jurisdiction needed detailed examination and could not be decided at the interim stage.

2. Applicability of Advisories and Guidelines:
The petitioner relied on various advisories issued by the Ministry of Shipping and the Director General of Shipping to argue that no penal charges, demurrage, or detention charges should be levied during the lockdown. However, the court found that these advisories were applicable only to Major Ports and their concessionaires, not to CFS operating outside Major Ports. The court noted that the Ministry of Shipping and Director General of Shipping had issued guidelines to Major Ports for waiving such charges, but these did not extend to CFS operating from non-major ports like Mudra and Jam Nagar.

3. Private Contractual Arrangements:
The court emphasized that the relationship between the CFS and their customers is governed by private contracts. The Ministry of Shipping and Director General of Shipping do not have the authority to intervene or modify these private contractual terms. The court noted that the advisories issued were not mandatory and did not have statutory force to bind the CFS to waive charges.

4. Relief Sought by the Petitioner:
The petitioner sought a direction to waive penal charges, demurrage, and other fees during the lockdown. The court found that the petitioner failed to make a prima facie case for such relief. The court highlighted that the advisories were not binding on CFS and that the CFS had already provided some relief voluntarily. The court also noted that the petitioner could recover the charges paid if it was later determined that the advisories were binding.

Conclusion:
The court dismissed the petitioner's application for interim relief, stating that the petitioner had not established a prima facie case, and the balance of convenience did not lie in their favor. The court directed the respondents to file detailed counter-affidavits for further proceedings.